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Political Fights Over High Court Nominees Are Nothing New

Last week’s political skirmishing during hearings on the nomination of Sonia Sotomayor to the Supreme Court evinces different reactions. Some think making presidential nominees political targets is undignified, disrespectful and unbecoming of “the world’s greatest deliberative body.— Others think nominees are fair game for any pernicious projectile that might stick and that it’s always open season.

[IMGCAP(1)]The conventional wisdom is that political warfare over nominations to the highest court is a recent development spawned by the Capitol’s descent into bitter partisanship. According to this view, the more traditional approach of the Senate through history has been to defer to a president’s choices as one of the perquisites of electoral success unless a nominee is morally, mentally or professionally unfit for the position.

Some observers think all that changed with President Ronald Reagan’s nomination of Robert Bork to the high court in 1987 and was further exacerbated in 1991 when President George H.W. Bush nominated Clarence Thomas to replace Justice Thurgood Marshall. Both nominees were opposed on grounds their views were too conservative. Bork lost big, while Thomas was narrowly confirmed.

Others go back further to President Richard Nixon’s nominations to the Supreme Court of Clement Haynsworth Jr. in 1969 and G. Harrold Carswell in 1970 — both of whom were rejected, though on ethical and competency grounds, respectively. The opening was occasioned by the resignation of Justice Abe Fortas in 1969 under the threat of impeachment for financial improprieties. Just months earlier President Lyndon Johnson attempted to elevate Fortas from associate justice to chief justice, but the nomination was blocked by a Republican-led filibuster over issues of judicial philosophy and presidential cronyism.

All of the above cases evidence a heightened politicization of the judicial nominating process in the latter third of the 20th century. What few realize, however, is that political opposition to Supreme Court nominations is as old and as American as Martha Washington’s apple pies. As one historical account notes, “The practice of inquiring into the political views of a presidential nominee … had its beginnings in the Washington administration— with the nomination of John Rutledge of South Carolina for chief justice.

Washington nominated Rutledge to replace Chief Justice John Jay when Jay was elected governor of New York upon his return from negotiating the controversial “Jay Treaty— with Britain. Rutledge, who was one of the original six justices appointed to the Supreme Court by President Washington in 1789, left the job in 1791 to take what he considered the more prestigious position as chief justice of South Carolina’s Supreme Court. However, when Rutledge learned in 1795 that Jay was leaving the bench, he wrote to Washington expressing an interest in the position. Washington obliged by giving him a temporary recess appointment as chief justice and submitted his nomination to the Senate.

When word got back to the Senate that Rutledge had delivered a fiery speech in Charleston opposing the Jay Treaty, Washington’s own Federalists handed the nomination back to him on a plate (sans pie). The treaty, which had been leaked after its ratification, caused a political firestorm among Jeffersonian Republicans who thought it gave short shrift to rural and Southern interests. Rutledge joined the fray to inveigh against Jay, even though his nomination was then pending before the same Senate that had ratified the treaty. That would be his undoing (along with rumors he was mentally unbalanced). The Senate defeated the nomination, 10-14 (with 13 of the “no— votes cast by Federalists).

According to CQ’s “Guide to the U.S. Supreme Court,— “most Senate rejections of court nominees have been grounded in political considerations,— the most prominent being the “lame duck— status of the nominating president (accounting for 14 rejections). Data compiled by the Congressional Research Service reveal that of the 158 Supreme Court nominations submitted since 1789, 36 were not confirmed by the Senate. Twenty-five of those occurred in the 19th century and another eight in the 20th century. In other words, failures to confirm were three times greater in the earlier century than in the latter.

What may be new is an increased focus on the judicial and political views of nominees as a legitimate cause for rejection. Former White House counselor Ed Gillespie, who shepherded the Supreme Court nominations of John Roberts and Samuel Alito for President George W. Bush, observed in a recent opinion piece that there has been a double standard on the ground rules for confirmation.

In 1993 and 1994, Senate Republicans voted overwhelmingly to confirm President Bill Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer to the high court on grounds the president was entitled to his choices unless they were not qualified by temperament, experience or intellect. In 2005, by contrast, half the Senate Democrats voted against Roberts and 40 of 44 voted against Alito (including then-Illinois Sen. Barack Obama in both instances).

Gillespie concludes that while the encroachment on executive prerogative is “unfortunate, and its polarizing effect is unhealthy,— the shift in power from the presidency to Congress is less troubling than “the inevitable leftward shift of our highest court if Republicans maintain the traditional standard while Democrats deploy an ideological one.— Gillespie is right about the polarizing and unhealthy effects of the court wars. He is wrong in suggesting more of the same.

Both parties should insist on standards of civility and reasonable deference in their treatment of a president’s nominees. Judiciary Republicans were off to a fairly good start last week with their tough but respectful questioning of Judge Sotomayor.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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